Lula must remain silent on the decriminalization of abortion by the STF

The flag against abortion was raised strongly by President Luiz Inácio Lula da Silva (PT) on the eve of the second round of elections in 2022, in an attempt to stifle controversial statements made on the topic. Despite this, Lula remained silent – ​​and should remain so – about the progress of the ADPF 442 trial by the Federal Supreme Court (STF), which could decriminalize abortion up to the 12th week of pregnancy.

The PT member’s silence does not come as a surprise to anyone who follows the political world. The political/electoral cost of demonstrating in favor or against abortion would be great for the government. On the one hand, abortion is one of the main concerns of a large part of its progressive base. Lula also wants to avoid any possibility of confrontation with STF ministers, with whom he has dedicated himself to consolidating an alliance.

On the other hand, Lula will be held accountable by the group of voters who believed in his promises to defend the unborn human being, including Catholics and evangelicals. If displeased, they can demand positions from the president on other issues to which he has committed. In September 2022, IPEC found that 7 out of 10 Brazilians are against the decriminalization of abortion. A large portion of the population that would not be worth opposing.

At the same time, remaining silent will also bring wear and tear to the Chief Executive. “The progressive base will understand that this is an electoral strategy, thinking about municipal elections, and the other side may be in doubt as to whether they did not want to intervene due to political strategy or because they were respecting the ‘autonomy of powers’”, analyzes Jonas Cecílio, attorney.

Felipe Rodrigues, political scientist, does not see much wear and tear in the president’s silence. “As this discussion is not happening within the federal government, I do not see silence as something negative in itself. Precisely because the president is not expected to take a stance on the issue”, he points out.

In the political-institutional field, parliamentarians tend to position themselves in a similar way to voters, but a wrong move by the president could lead to the disruption of the support of the Chamber of Deputies and the Federal Senate in the government’s agendas. Lula recently made political changes in ministries to get closer to parties such as the Republicans, which has part of the parliamentarians from the evangelical group as members.

Rodrigues highlights that, if the discussion about abortion gains strength within the Legislature, there will be a real need for Lula’s position. “It will not be a direct speech from the president, so that he does not get personally involved in this issue, but the government will need to guide its base”, he highlights.

To complete the scenario, the STF’s latest decisions have been more pleasing to the left-wing movements, according to Cecílio, and, therefore, the president’s engagement would not be necessary. “The profile of our Court has a strong progressive bias, for the most part. So, the Executive does not need to make great efforts for the progressive agenda to advance”, pointed out the lawyer.

Being against abortion was an electoral strategy to get votes from evangelical Christians, says expert

In a public letter addressed to evangelicals, in addition to committing to keeping young people away from drugs – another current discussion in the Supreme Court -, the then PT candidate stated that “our government project is committed to full Life in all its phases ” and that “my commitment has always been and will be to your protection.”

Lula pointed out that he is personally against abortion, a phrase that was intensely reinforced in the days leading up to the second round of the 2022 elections. He concluded the document by saying that it is up to the National Congress and not the President of the Republic to legislate on the issue.

“The fact that the president said, during the election period, that he would be against abortion, in my point of view, was just an electoral strategy. Lula needed to gather a greater number of votes and he was, declaredly, looking for Christian-evangelical votes”, assesses Jonas Cecílio.

In the first days of Lula’s government, the Minister of Women, Cida Gonçalves, and Minister of Health, Nísia Trindade, spoke publicly about the topic. In the first days of the year, Cida Gonçalves said that “for us, abortion is a public health issue” and that “whatever is possible to move forward, we will move forward”. Still in the first half of January, Nísia Trindade revoked a decree signed during the government of former president Jair Bolsonaro (PL) that provided for doctors to notify police authorities in cases of abortion resulting from rape.

Political alignment has been a criterion for choosing a new STF minister

Given the retirement of Minister Rosa Weber, Lula will make a new appointment to the composition of the Court. Recently, the president spoke out saying that criteria such as race and gender will not be taken into consideration when choosing the new minister.

Rodrigues analyzes a movement that has made the STF increasingly political. The latest nominations (not only from Lula, but also from former presidents Bolsonaro, Michel Temer and Dilma Rousseff) began to be highly evaluated in the political field. “There is a notable legal knowledge of the appointed ministers, there is no doubt. But, in most nominations, a programmatic and political criterion is much more important”, he highlights.

“This causes the Court to become more political, to enter more into controversial topics and even revisit opinions consolidated by the Court itself as governments succeed one another”, emphasizes Rodrigues. Appointments based on political alignment end up bringing together the agendas of the Executive and the Supreme Court. As a consequence, judicial activism gains more strength, as it opens the door for the STF to enter into responsibilities that are not its responsibility.